Huynh v Parilla East Pty Ltd - [2009] NSWWCCPD 86

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION: Huynh v Parilla East Pty Ltd [2009] NSWWCCPD 86

APPELLANT: Thi Anh Hong Huynh

RESPONDENT: Parilla East Pty Ltd

INSURER: GIO General Limited

FILE NUMBER: A1-7904/08

ARBITRATOR: Mr D Minus

DATE OF ARBITRATOR’S DECISION: 7 April 2009

DATE OF APPEAL DECISION: 29 July 2009

SUBJECT MATTER OF DECISION: Duty to give reasons for decision

PRESIDENTIAL MEMBER: Deputy President Kevin O’Grady

HEARING: On the papers

REPRESENTATION: Appellant: Gajic & Co Lawyers

Respondent: Hicksons

ORDERS MADE ON APPEAL:
1. Paragraph 1 of the Arbitrator's decision dated the 7 April 2009 is revoked and the following order is made in its place:

“1. Award for the applicant at the rate of $203.95 per week from 26 August 2008 to date and continuing pursuant to section 40 of the WorkersCompensation Act 1987.”

2. Paragraphs 2 and 3 are confirmed.

3. The respondent is to pay the appellant's costs of the appeal.

BACKGROUND TO THE APPEAL
1.Ms Thi Anh Hong Huynh (the worker) commenced employment as a dispatch worker with Parilla East Pty Ltd (‘the respondent’) on 23 October 2006. On 3 October 2008, she brought proceedings in the Workers Compensation Commission (‘the Commission’) against the respondent alleging injuries to her neck, back and right shoulder as a result of the nature and conditions of her employment from January 2007 to March 2007.

2.The worker claimed weekly compensation, medical expenses and lump sums.

3.At a teleconference held on 7 November 2008 the worker amended her claim for weekly compensation as being from 26 August 2008 to date and continuing.

4.An order was made at that time referring the worker to Dr Giblin, an approved medical specialist (‘AMS’). A medical assessment certificate (‘MAC’) issued on 16 December 2008 certifying that the worker had 0% whole person impairment (WPI).

5.An arbitration hearing was held on 9 March 2009. Mr Trainor of counsel appeared for the worker, who was present at the arbitration and was assisted by a Vietnamese interpreter. Mr Halligan of counsel appeared for the respondent. Ms Terrye Lawther, Logistics Manager for the respondent, gave oral evidence and was cross-examined. The proceedings were recorded and a transcript of that evidence and the submissions of the parties (‘ transcript’) is available before the Commission.

6.A Certificate of Determination and Statement of Reasons (‘reasons’) were issued to the parties on 7 April 2009.

7.On 4 May 2009, the worker sought leave to bring an ‘Appeal Against Decision of Arbitrator’ (‘the Application’) in the Commission.

8.The respondent filed a ‘Notice of Opposition to Appeal Against Decision of Arbitrator’ on 26 May 2009.

THE DECISION UNDER REVIEW
9.The Certificate of Determination dated 7 April 2009, recorded the Arbitrator’s orders as follows:
“1. There is an award for the Applicant in respect of her claim for weekly compensation. The Respondent is to pay the Applicant, pursuant to s 40 of the Workers Compensation Act 1987, from 26/8/2008 to 16/12/2008, a period of 16…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWWCCPD 86
Decision Date: 29 July 2009

CaseChat Overview and Summary

The case before the court involved Huynh, the appellant, and Parilla East Pty Ltd, the respondent, where the dispute centred on the decision made by an arbitrator regarding workers' compensation claims. The Federal Circuit Court was tasked with reviewing the arbitrator's decision. The primary legal issue before the court was whether the arbitrator was required to provide reasons for his decision and whether the lack of such reasons rendered the decision invalid. Additionally, the court needed to determine the correct amount of compensation owed to the appellant.

The court found that the arbitrator did not provide reasons for his decision, but this did not necessarily invalidate the decision. The court emphasised that while reasons are generally required to ensure transparency and accountability, the absence of reasons did not automatically invalidate an arbitrator's decision if the decision itself was legally sound. The court held that the arbitrator's decision was based on a proper application of the law and the evidence presented, and therefore, the decision was not invalid on the basis of lack of reasons alone. The court also found that the correct amount of compensation owed to the appellant was $203.95 per week from 26 August 2008, and this was to continue as per the relevant section of the Workers Compensation Act 1987.

In light of the above, the court revoked part of the arbitrator's decision and substituted it with a new order that reflected the correct compensation amount. The court confirmed the remaining parts of the arbitrator's decision and ordered the respondent to pay the appellant's costs of the appeal. The final orders included awarding the appellant compensation at the specified rate, confirming the remaining parts of the arbitrator's decision, and directing the respondent to pay the appellant's costs of the appeal.

Orders

Orders of the court

1. Paragraph 1 of the Arbitrator's decision dated the 7 April 2009 is revoked and the following order is made in its place:

“1. Award for the applicant at the rate of $203.95 per week from 26 August 2008 to date and continuing pursuant to section 40 of the Workers Compensation Act 1987.”

2. Paragraphs 2 and 3 are confirmed.

3. The respondent is to pay the appellant's costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Huynh v Parilla East Pty Ltd [2009] NSWWCCPD 86
APPELLANT:		Thi Anh Hong Huynh
RESPONDENT:		Parilla East Pty Ltd
INSURER:		GIO General Limited
FILE NUMBER:		A1-7904/08
ARBITRATOR:	Mr D Minus
DATE OF ARBITRATOR’S DECISION:		7 April 2009
DATE OF APPEAL DECISION:		29 July 2009
SUBJECT MATTER OF DECISION:		Duty to give reasons for decision
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Gajic & Co Lawyers
Respondent:	Hicksons
ORDERS MADE ON APPEAL:		1. Paragraph 1 of the Arbitrator's decision dated the 7 April 2009 is revoked and the following order is made in its place: “1. Award for the applicant at the rate of $203.95 per week from 26 August 2008 to date and continuing pursuant to section 40 of the WorkersCompensation Act 1987.” 2. Paragraphs 2 and 3 are confirmed. 3. The respondent is to pay the appellant's costs of the appeal.